Legal Updates

Legal Updates

Evidence in asylum, human rights and immigration applications

In all types of asylum, immigration or human rights applications, you will need evidence to support your application.

Evidence is information to prove – to the Home Office, or maybe to the courts if you are appealing a refusal – that you are telling the truth. This may be to prove that you need to be in the UK, that you can’t live elsewhere, or just that you meet the criteria (the rules) of the application.

The evidence needed will be specific to your case, to your individual situation. There are, however, some standard rules and principles that need to be met and these will depend on the kind of application you are making.

When do you need to provide evidence? For some applications, such as in asylum applications (see below), there may be several points at which you can submit evidence to support your case. In other applications, you may only get one opportunity to submit evidence. The evidence you should submit will depend on the rules you are trying to show you meet and maybe where in the application process you are. For example, if you have had a refusal from the Home Office and you have an opportunity to provide more evidence, your evidence should try to address the reasons the Home Office have given for their refusal. Can you show that you do, in fact, meet the rules or requirements? When possible, you should try and pre-empt (take action to stop it happening) the Home Office refusal and provide evidence for areas they commonly refuse applications on, or areas of your application that appear to be weak or vague.

You will need to think about who is responsible for providing evidence. Is it you? Is it a family member? Is it someone who been supporting you, either as a staff member or volunteer at an organisation, or in your community? Is it your employer? Is it a professional such as a doctor, social worker or teacher? Is it your lawyer?

Your lawyer might be responsible for providing evidence if it is about technical legal arguments, or case law (decisions in other people’s cases).

How do you know what is good evidence? For some kinds of applications, there are very specific types of evidence that is allowed (and in some cases, in a very specific format). The Home Office has lists of what they consider to be acceptable evidence in their internal guidance documents, but the courts may not always agree with their position on this. If your evidence comes from outside the UK, you may need to prove its genuineness and how you received it. You need to think about where the evidence comes from and if that source will be considered as trustworthy by the Home Office and/or the courts.

Evidence in asylum cases

At the early stages of an asylum claim, your evidence may just be your testimony (your story) about what has happened to you and/or what you think may happen, and why that means it is not safe to return to your country.

The Home Office will look at the information you gave in your screening interview and then in your substantive interview. They will check if there are any differences, or things they don’t think make sense, or that they don’t think are true.

Documentary evidence is often hard to get because of the circumstances in which you had to leave your country. Nonetheless, the Home Office tends to disbelieve what you say (your testimony) and so it is very helpful if there is genuine documentary evidence to support your story. Documentary evidence might include a political party membership card, an arrest warrant, a birth certificate, or newspaper articles about you or about persecution of people like you.

If you are going to submit any documentary evidence, make sure you have shown this to your lawyer beforehand and they have agreed it should be submitted. You can either give this evidence to the Home Office at the interview, or shortly after the interview.

Objective evidence may be general information about the situation in your country, from reliable sources such as human rights organisations or trusted media sources. It could also include an expert statement on your country or situation.

Objective evidence is especially important if your credibility has been questioned by the Home Office, because the evidence isn’t based on what you say happened or could happen.

If your asylum claim is “appeal rights exhausted” and you have new evidence, you may want to consider a fresh claim.

The basis of a fresh claim might be new evidence about the original reason you claimed asylum; or it might be that your situation has changed since you claimed asylum and had an appeal heard and dismissed; the situation in your country may have changed; or subsequent case law might have changed the way cases are dealt with or decided.

The evidence you submit to be considered as a fresh claim might be emphasising a point already made, or providing a new source of evidence for an issue that has previously been disputed. The evidence may be on an entirely new matter that hasn’t been raised with the Home Office/courts before. To be considered as a fresh claim your new evidence must include new and relevant information.

Applications based on family members, including children

If you are a British citizen or someone with Indefinite Leave to Remain (ILR) in the UK and you wish to apply for your spouse, civil partner or unmarried partner to come and live with you, you will in most circumstances have to meet income or savings criteria. If you wish to sponsor a partner to come to the UK, you will need to be earning a minimum (before tax) of £18,600 per year or equivalent in cash savings. You will need to provide evidence that you meet this criteria – this might be through payslips, tax documents and/or bank statements.

In any application based on a relationship, you will need to prove that relationship exists.

If you are applying to stay in the UK based on your family life in the UK, and this is because you have a partner in the UK but cannot meet the income/savings criteria mentioned above, you will need to prove that:

you have a “genuine and subsisting relationship”,

with a partner who is in the UK and they are a British citizen, or have Indefinite Leave to Remain, or Refugee Status or Humanitarian Protection,

and there are insurmountable obstacles to your family life with your partner continuing outside of the UK.

For applications based on being a parent of a child in the UK, you will need to prove they are your child.

If your child is a British citizen, you will need to provide proof of that. If you are applying on the basis that your child has been in the UK for seven years, you will need to document that very clearly.

Applications can be refused if you do not speak English, or if you are not financially independent. If you do speak English and are financially independent, you should provide evidence of this in your application.

You may also need to demonstrate the extent of the life your child has in the UK, and why it would be unreasonable to expect them to leave the UK.

The Home Office has a list of information you may need to have ready when making an application based on family members in the UK. If you have a lawyer helping you with your application, you will need to provide the information to them.

Proving time spent in the UK

For some applications, you will need to prove how long you have been in the UK (and maybe, the length of time you have been outside of the UK since you arrived).

For example, to successfully apply for EU Settled Status, you need to prove that you (as an EEA national) have been living in the UK for five years. Most people will just be able to provide their National Insurance number and there is an automated check of tax and some benefits records.

If this doesn’t work, the Home Office has provided information about how you provide evidence in other ways. This useful blog post also provides template letters that can be filled in by employers, schools and care homes.

The information the Home Office suggests you can submit is also useful if you are trying to prove your length of residence in the UK for other types of applications, as it gives a good idea of what the Home Office considers to be “good” evidence.

For proving long periods of residence in the UK, the Home Office suggests:

annual bank statement or account summary, showing at least 6 months of payments received or spending in the UK

employer letter confirming employment and evidence that the employer is genuine, for example, their Companies House number

council tax bill

letter or certificate from your school, college, university or other accredited educational or training organisation showing the dates you enrolled, attended and completed your course

invoice for fees from your school, college, university or other accredited educational or training organisation and evidence of payment

document showing a UK address from a student finance body in England, Wales, Scotland or Northern Ireland or from the Student Loans Company

residential mortgage statement or rental agreement and evidence of payment

letter from a registered care home confirming your residence there

employer pension contributions

annual business account of a self-employed person

a P60 for a 12-month period – your P60 shows the tax you’ve paid on your salary in the tax year (6 April to 5 April). We may ask you for additional evidence to confirm that you were resident here for at least 6 months of that period.

a P45 showing the length of your previous employment. You should get a P45 from your employer when you stop working for them.

For proving shorter periods of time spent in the UK (that might not be captured in the documents mentioned above), the Home Office suggest:

Evidence the Home Office doesn’t like

It’s worth noting that the Home Office say that evidence should “be from an official or impartial source” and do not consider photos and videos; letters or references from family and friends; greeting cards, for example birthday cards; postcards sent or received; or personal scrapbooks as evidence that should be used to prove residence.

If you can find the stronger evidence detailed in the lists above, then you should use that. However, when more official evidence isn’t available, people do use photos, videos, letters etc, especially in applications around relationships. The Home Office consider this to be weaker evidence and may not grant an application if this is the only evidence submitted, but a judge on appeal may view them differently.

The Home Office is often very suspicious of documentation from outside of the UK. If the Home Office determine that evidence you have provided isn’t genuine, this is generally very damaging to your case and the Home Office may say that nothing else you have submitted or said can be trusted. This isn’t actually the legal position on how applicants who have previously submitted false documents should be treated, but it still happens quite a lot.

Watch the video version of this blog post:

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